England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MISS B DOHMANN QC)

		Royal Courts of Justice The Strand London
		Friday 29 November 1996

Friday 29 November 1996

THE LORD CHIEF JUSTICE: The plaintiff in this action was arrested on 6 February 1994, charged with criminal offences the following day and on 25 April 1994 committed in custody by the magistrates' court for trial in the Crown Court. She was held at HM Prison Pucklechurch from the date of committal until her release on 3 November 1994, a period of 193 days. She contends that the last 81 days of this period of detention were unlawful, being in excess of the time limit of 112 days between committal and arraignment prescribed by Regulation 5(3)(a) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 as amended. She also contends that the Crown Prosecution Service wrongfully failed, in breach of the duty imposed on them by Regulation 6(1) of those Regulations, to bring her before the Court so that she might be admitted to bail.

In November 1995 the plaintiff issued proceedings. She sued the Home Office, as the department responsible for prisons, claiming damages (including exemplary damages) for false imprisonment. She sued the CPS claiming damages (including exemplary damages) for breach of statutory duty. Both defendants applied to strike out the claim against them under RSC Order 18 rule 19 as disclosing no reasonable cause of action. On 29 April 1996 Miss Barbara Dohmann QC, sitting as a deputy judge of the Queen's Bench Division, ordered that the plaintiff's claim against the Home Office be struck out but she dismissed the application to strike out made by the CPS. The plaintiff appeals against the first of these orders, the CPS against the second, in each case with the leave of the deputy judge. The question for us is whether, on the facts stated, the plaintiff's claim against each defendant is so obviously unsustainable in law as to make it proper to strike out the claim at this preliminary stage. The plaintiff's claims against the two defendants are independent of each other, and do not stand or fall together. No separate issue arises at this stage on the plaintiff's claims to exemplary damages.

THE RELEVANT STATUTORY PROVISIONS

Section 6(3) of the Magistrates' Courts Act 1980 provides:

"Subject to section 4 of the Bail Act 1976 and section 41 below, the court may commit a person for trial --

(a) in custody, that is to say, by committing him to custody there to be safely kept until delivered in due course of law ..."

Subsection (4) of the same section reads:

"Where the court has committed a person to custody in accordance with paragraph (a) of subsection (3) above, then, if that person is in custody for no other cause, the court may, at any time before his first appearance before the Crown Court, grant him bail in accordance with the Bail Act 1976 subject to a duty to appear before the Crown Court for trial."

The Prosecution of Offences Act 1985 provides, in section 22, as follows:

"(1) The Secretary of State may by regulations make provision, with respect to any specified preliminary stage of proceedings for an offence, as to the maximum period -

(a) to be allowed to the prosecution to complete that stage;

(b) during which the accused may, while awaiting completion of that stage, be

--

(i) in the custody of a magistrates' court; or

(ii) in the custody of the Crown Court;

in relation to that offence."

Subsection (2) specified some matters to which the regulations might in particular apply. These included the procedure to be followed in criminal proceedings in consequence of any other provision of the regulations. Subsection (3) provided:

"The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit if it is satisfied --

(a) that there is good and sufficient cause for doing so; and

(b) that the prosecution has acted with all due expedition".

Subsection (11) contained a number of definitions. Where an accused has been committed for trial, "the appropriate court" in subsection (3) means the Crown Court. The "custody of the Crown Court" includes custody to which a person has been committed in pursuance of section 6 of the Magistrates' Courts Act 1980. "Custody time limit" is defined to mean a time limit imposed by regulations made under subsection (1)(b) of section 22 or, where any such limit has been extended by a court under subsection (3), the limit as so extended. "Preliminary stage", in relation to any proceedings, is defined so as not to include any stage of the proceedings after the accused has been arraigned in the Crown Court.

The Secretary of State exercised his power to make regulations under section 22(1)(b) of the 1985 Act by making the Prosecution of Offences (Custody Time Limits) Regulations 1987, which were amended in 1988, 1989 (twice) and 1991. The following provisions of these regulations are relevant for present purposes.

Regulation 5 provides:

"(2) Where --

(a) a person accused of an indictable offence other than treason is committed to the Crown Court for trial; ....

the maximum period during which he may be in the custody of the Crown Court in relation to that offence, or any other offence included in the indictment preferred against him, while awaiting the preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in those provisions.

(3) The maximum period of custody --

(a) between the time when the accused is committed for trial and his arraignment; ....

shall, subject to the following provisions of this Regulation, be 112 days".

Regulation 6, so far as relevant, provides:

"(1) Subject to the following provisions of this Regulation where an accused who is in custody pending trial in the Crown Court has the benefit of a custody time limit under Regulation 5 above the prosecution shall -

(a) not less than 5 days before the expiry of the time limit give notice in writing to the appropriate officer of the Crown Court and to the accused or his representative stating whether or not it intends to ask the Crown Court to impose conditions on the grant of bail in respect of the accused and, if it intends to do so, the nature of the conditions to be sought; and

(b) make arrangements for the accused to be brought before the Crown Court within the period of 2 days preceding the expiry of the time limit.

....

(3) The prosecution need not comply with paragraph (1)(a) above if it has given notice under Regulation 7(2) below of its intention to make an application under section 22(3) of the 1985 Act.

(4) On receiving notice under paragraph (1)(a) above stating that the prosecution intends to ask the Crown Court to impose conditions on the grant of bail, the accused or his representative shall --

(a) give notice in writing to the appropriate officer of the Crown Court and to the prosecution that the accused wishes to be represented at the hearing of the application; or

(b) give notice in writing to the appropriate officer and to the prosecution stating that the accused does not oppose the application; or

(c) give to the appropriate officer, for the consideration of the Crown Court, a written statement of the accused's reasons for opposing the application, at the same time sending a copy of the statement to the prosecution.

....

(6) The Crown Court, on being notified that an accused who is in custody pending trial there has the benefit of a custody time limit under Regulation 5 above and that the time limit is about to expire, shall grant him bail in accordance with the Bail Act 1976, as from the expiry of the time limit, subject to a duty to appear before the Crown Court for trial."

Regulation 7, so far as relevant, provided:

"(1) An application to a court for the extension or further extension of a custody time limit under section 22(3) of the 1985 Act may be made orally or in writing.

(2) Subject to paragraphs (3) and (4) below the prosecution shall --

(a) not less than 5 days before making such an application in the Crown Court; and

(b) not less than 2 days before making such an application in a magistrates' court,

give notice in writing to the accused or his representative and to the proper officer of the court stating that it intends to make such an application."

Regulation 8 provides that the Bail Act 1976 shall apply subject to certain modifications in cases to which a custody time limit applies.

Section 1(6) of the Bail Act 1976 provides that:

"Bail in criminal proceedings shall be granted (and in particular shall be granted unconditionally or conditionally) in accordance with this Act."

Where a custody time limit has expired section 3 of the Bail Act has effect as if subsections (4) and (5), dealing with sureties and security for the surrender of the defendant, were omitted. In that situation subsection (6) provides that:

"He [a person granted bail in criminal proceedings] may be required (but only by a court) to comply, after release on bail, with such requirements as appear to the court to be necessary to secure that --

(a) he surrenders to custody,..." etc.

Where a custody time limit has expired section 4 of the Act has effect as if it read:

"(1) A person to whom this section applies shall be granted bail.

(2) This section applies to a person who is accused of an offence when --

(a) he appears or is brought before a magistrates' court or the Crown Court in the course of or in connection with proceedings for the offence, or

(b) he applies to a court for bail in connection with the proceedings."

The effect of these provisions was succinctly summarised by Glidewell LJ in Reg -v- Maidstone Crown Court, ex parte Clark [1995] 1 WLR 831 at 834, when he said:

"Put shortly, the effect of those provisions is that, if a custody time limit, either the original 112 days or any period extended as a result of an order of the court, expires before arraignment in the Crown Court, then the relevant defendant is automatically entitled to bail. The court's only powers thereafter are to impose conditions on the grant of that bail. The power of the Crown to apply to the Crown Court to extend the time limit can only be exercised by that court if it is satisfied of the two requirements in section 22(3) of the 1985 Act, good and sufficient cause and that the prosecution has acted with all due expedition."

THE WARRANT OF COMMITMENT

The warrant committing the plaintiff for trial at the Crown Court at Bristol was only produced during the hearing before us, and as a result it was neither pleaded nor seen by the deputy judge. It was, however, agreed between the parties that for the purposes of this hearing we should treat this warrant as part of the factual material before us.

The warrant was headed with the name of the magistrates' court and gave the date, the name of the accused and the offence of which she was accused. It recorded the decision of the magistrates to commit the plaintiff for trial at the Crown Court at Bristol. It then continued:

"DIRECTION: You, the constables of the Avon and Somerset Constabulary, are hereby commanded to convey the accused to Pucklechurch and there deliver the accused to the Governor thereof, together with this warrant; and you, the Governor, to receive into your custody and (unless the accused is released on bail in the meantime) keep the accused until the accused is delivered in due course of law. The custody time limit which applies to these proceedings is due to expire on 15th August 1994".

This wording, a variation of the standard terms of Form 18 in Schedule 2 to the Magistrates' Courts (Forms) Rules 1981, followed a Home Office recommendation in Circular 18/1987. It was common ground between the parties to the appeals that the words "delivered in due course of law" were to be understood as referring to delivery to the Crown Court.

THE CLAIM AGAINST THE HOME OFFICE

The deputy judge struck out the plaintiff's claim against the Home Office on the ground that expiry of the time limit entitled the plaintiff to an order for release on bail by the court, not to release by the Governor.

Mr Nicholas Blake QC for the plaintiff criticised that ruling. His argument was simple and attractive. By section 22(1) of the 1985 Act the Secretary of State had power to make regulations as to the maximum period during which an accused person might be held in the custody of the Crown Court. The Secretary of State had exercised that power by making the 1987 regulations. He had fixed 112 days as the maximum period during which an accused could be so held after committal and before arraignment. The magistrates' court could not lawfully commit the plaintiff to prison for any longer period. Unless that period was duly extended, or within that period or any extended period the plaintiff was arraigned, there was no lawful power to detain her and the magistrates' court could not confer such power. In the present case the maximum period for which the plaintiff could lawfully be held in custody had expired, and had not been extended. It followed that the plaintiff was thereafter detained unlawfully. She accordingly had a claim for damages for false imprisonment against the party responsible for her detention, the Home Office as the party responsible for the Governor of the prison in whose custody she had been. Reliance was placed on a summary of the law in volume 45 of Halsbury's Laws, 4th edn, at para. 1329:

"The governor of a prison is protected in obeying a warrant of commitment, valid on the face of it, addressed to him, and is not liable to an action for false imprisonment if he detains a person in pursuance of the warrant. However, he is liable if he ......keeps a prisoner in custody without a sufficient warrant of commitment or for a longer time than is lawful".

Mr Stephen Richards for the Home Office supported the decision of the deputy judge. He submitted that the duty of the Governor was to obey the order of the court. Following the committal of the plaintiff under section 6 of the Magistrates' Courts Act l980, the plaintiff was (as was clear from section 22(1)(b)(ii) of the l985 Act and Regulation 5(2)(a) of the Regulations) to be regarded as in the custody of the Crown Court. The Governor's duty under section 6(3)(a) of the l980 Act and according to the direction given to him in the warrant was to hold the plaintiff until she should be delivered to the Crown Court in due course of law. He was never at any material time called upon to deliver the plaintiff to the Crown Court in due course of law, and could not lawfully take it upon himself to release the plaintiff. She, in any event, had no right to be released after 112 days; her right was to be released on bail by order of the court. Although alerted by the terms of the warrant to the date upon which the custody time limit was to expire, the Governor had no independent role in making any application to the court, nor any authority to release the plaintiff without an order of the court.

In my judgment, the submission of Mr Richards is essentially correct. The plaintiff was in the custody of the Crown Court. Only by order of the court could that period of custody be brought to an end. Once the custody time limit had expired without extension, the Crown Court would have been obliged to order the release of the plaintiff, but such release would have been on bail and the Crown Court could have imposed terms with which the plaintiff would have been obliged to comply after release. Once the custody time limit had expired, the plaintiff was in my view unlawfully detained, and an order which would have led to her release could have been obtained either from the Crown Court or from the Divisional Court; but it does not follow that in the absence of any such order the Governor was guilty of falsely imprisoning the plaintiff and in my view he was neither entitled nor bound to release her.

Mr Blake addressed a supporting argument based on the following provisions of Article 5 of the European Convention on Human Rights:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:.....

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;.....

3. Everyone arrested or detained in accordance with the provisions of paragraph 1c of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

If, under the statutory provisions, the right of the plaintiff to be compensated for her unlawful detention was in any way doubtful, Mr Blake submitted that those provisions should be interpreted so as to give effect to the obligation of the United Kingdom under the European Convention.

Mr Richards resisted this argument. He submitted that there was in this case no ambiguity, no obscurity and no absurdity in the statutory provisions, and there was accordingly no ground upon which recourse could be had to the Convention. Even if the Convention did apply, Mr Richards submitted that the plaintiff could show no breach of it. She had been lawfully detained for a purpose recognised in Article 5.1(c). She enjoyed the right to trial within a reasonable time or to release pending trial under Article 5.3, and there was accordingly no breach on the part of the United Kingdom in that respect. Since there was no detention in contravention of the provisions of Article 5 the plaintiff could not lay claim to an enforceable right to compensation.

I can see no answer to Mr Richards' submission. If it is permissible to have recourse to the Convention (which in the present case I doubt), I feel bound to conclude that the excessive detention of which the plaintiff complains arose not from the failure of the United Kingdom to afford her the rights to which she was entitled under the Convention but from her failure (for whatever reason) to exercise those rights.

In my judgment the deputy judge was right to strike out the plaintiff's claim against the Home Office, since it was unsustainable in law and the outcome could not be affected by any evidence which might be called.

THE CLAIM AGAINST THE CPS

The deputy judge felt some doubt whether this claim also should not be struck out, but concluded that the claim was not so obviously unsustainable as to make that a proper course. The CPS argue that she was wrong not to strike out this claim also.

Regulation 6 of the l987 Regulations makes it clear that the CPS must bring an accused person before the Crown Court shortly before expiry of a custody time limit, and it may be relieved from complying with that duty only by direction of the Crown Court. The regulation places the onus for performance of this duty squarely on the CPS, which in practice should be well placed to discharge it. In the present case, for whatever reason, the CPS wholly failed to perform that duty, with the result that the plaintiff spent much longer in prison on remand than she should have done.

The issue is whether the statutory duty imposed on the CPS is a public law duty only, or whether it gives rise to a private law right enforceable by a person injured by breach of such duty and so entitled to recover compensation.

Although novel in the present context, this is a familiar question and there was no issue between the parties as to the principles to be applied. They are to be found in R v. Deputy Governor of Parkhurst Prison Ex parte Hague [l992] 1 AC 58 at 159H-161A, 167B-C and 170H-173D, and X (Minors) v Bedfordshire County Council [l995] 2 AC 633 at 731C-732B. We must study the relevant provisions of the statute and the regulations in order to determine whether Parliament and the Secretary of State intended that anyone injured by failure of the CPS to perform its statutory duty should enjoy a private law right of action sounding in damages. In seeking to understand the intention of Parliament and the Secretary of State regard must be paid to the object and scope of the provisions, the class (if any) intended to be protected by them, and the means of redress open to a member of such a class if the statutory duty is not performed.

The object of these provisions plainly was to achieve a greater measure of expedition in the prosecution of criminal offences where defendants were remanded in custody to await trial, and (if such expedition were lacking) to ensure that defendants did not languish in prison for excessive periods awaiting trial. The protection of prospective defendants was thus an object of the provisions. When Parliament enacted section 22 of the l985 Act, it must have expected that custody time limits which the Secretary of State was authorised to set by regulations would be realistic and achievable and would accordingly be achieved (if necessary being extended by order of the court). It was the l985 Act which established the CPS, which was intended to be an efficient and highly professional prosecuting service. While the power conferred on the Secretary of State by section 22 was expressed in very broad terms, there is nothing to suggest that Parliament intended to give him power to create new private law rights of action. Regulation 6 of the l987 Regulations makes it plain that the duty of ensuring that a defendant does not spend longer in custody than permitted by any relevant custody time limit is laid on the CPS. It was no doubt assumed, as it was plainly intended, that the CPS would perform its duty. If for any reason it did not, a defendant injured by its failure was doubtless expected to apply for release on bail at once, such application being assured of success. There is nothing in the l985 Act or in the 1987 Regulations to suggest that either Parliament or the Secretary of State foresaw the present, very unhappy, conjunction of events: failure to arraign the plaintiff before expiry of 112 days; failure by the CPS to perform its duty under Regulation 6; and failure by the plaintiff to seek release. It cannot in my opinion have been intended to confer a private law right of action for damages in such circumstances. Support for this view is to be found in Elguzouli - Daf v Commissioner of Police of the Metropolis [1995] QB 335.

On this issue I take a different view from that taken, with some hesitation, by the deputy judge. It seems to me plain that these provisions were not intended to confer any private law right on a party injured by the failure of the CPS to perform its duty, and I accordingly conclude that the plaintiff's claim against the CPS must be struck out.

In the result, therefore, I would dismiss the appeal of the plaintiff against the striking out of her claim against the Home Office and would allow the appeal of the CPS against the refusal to strike out the claim against it.

We are not in possession of the full facts concerning this matter, and must accordingly refrain from comment which may be unsound. We do not, for instance, know what if any steps were taken to alert the plaintiff to her rights on remand in custody, or whether she was at that time legally represented. It would, however, be a matter of acute concern if it were the case that the plaintiff had through no fault of her own spent an excessive time in prison on remand, and had no right to compensation for this injury. It may be that there are parties other than the Home Office and the CPS from whom the plaintiff may be entitled to redress. If not, and unless she is the author of her own misfortune, it would seem to me highly unjust if she were denied any compensation for what would, on this hypothesis, be an undoubted injury.

I have had the opportunity of reading in draft the judgment of Mummery LJ, and I fully agree with it.

LORD JUSTICE AULD: I have read in draft the judgment of the Lord Chief Justice and Mummery LJ and I agree with them.

LORD JUSTICE MUMMERY: I agree.

The Governor of Pucklechurch Prison was directed by the Bristol Magistrates Court in the Warrant of Commitment

"to receive into your custody and (unless the accused is released on bail in the meantime) keep the accused until the accused is delivered in due course of law."

It was within the jurisdiction of the Bristol Magistrates Court to give that direction. The Governor was bound to comply with the direction unless and until a Court gave a contrary direction; for example, an order releasing the Plaintiff on bail pending the outcome of the trial in the Crown Court. The valid Warrant of Commitment provides a conclusive answer to the Plaintiff's claim of false imprisonment against the Home Office.

The effect of the statutory custody time limit referred to in the warrant was that the CPS was under a duty to serve a notice in writing under Regulation 6 (1)(a) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 not less than 5 days before the expiry of the time limit and to make arrangements for the Plaintiff to be brought before the Crown Court within the period of two days preceding the expiry of the time limit. Neither the regulations nor the provisions of the Prosecution of Offences Act 1985 absolved the Governor of the prison from his duty to comply with the court's direction in the warrant or varied that duty or conferred on him a power to discharge the Plaintiff from custody immediately on or after the expiration of the custody time limit, in the absence of a Court order made on the application of the CPS or of the Plaintiff.

This case is in contrast to Moone -v- Rose (1869)4 LR QB 486 where the keeper of a gaol was held liable for the false imprisonment of a person committed to prison for contempt of Court. The keeper of the gaol failed to comply with an express imperative statutory duty to discharge that person out of his custody after the expiration of a fixed period (" 30 days from the time of his being actually in custody"). He was not, therefore, able to rely on a court direction of the kind given in this case and in the case of Henderson -v- Preston (1888) 21 QBD 362 at 366, 367.

There is no dispute that Regulation 6 imposed specific statutory duties on the CPS, that it failed to perform them and that the Plaintiff remained in custody 81 days longer than the custody time limit. This Court does not know (a) why the CPS failed to apply for an extension or to serve the relevant notices or to bring the Plaintiff before the Crown Court; or (b) why the Plaintiff did not, after mid-August 1994, bring the matter before the Crown Court on an application for bail or before the High Court for Judicial review. As this is an application to strike out the plaintiff's claim as disclosing no reasonable cause of action,this court is confined to the facts pleaded in the plaintiff's statement of claim. There has been no application by Counsel for the Plaintiff to amend the statement of claim.

In those circumstances, the only question for this court is whether, assuming the facts pleaded in the statement of claim to be true, the Plaintiff has a reasonably arguable claim in law for damages for breach of statutory duty. There is no allegation of malice, of misfeasance in a public office, or of negligence, on the part of the CPS. The claim is starkly pleaded as one of strict liability for damages for breach of a duty imposed by statute.

It is a question of available remedies. The plaintiff was undoubtedly entitled to remedies in the criminal proceedings (Bail) and in Judicial Review proceedings. The issue is whether she is entitled to an additional remedy against the CPS by way of a civil law claim for damages. It is common ground that it is not enough for the Plaintiff simply to show that she has suffered damage in consequence of a breach of duty imposed by statute. The court must be satisfied that, on the true construction in the relevant statutory provisions,a right of action for damages has been created by Parliament. This question is answered by the application of well established principles stated by the Lord Chief Justice.

As this case concerns the liberty of the subject,it requires the fullest and most anxious consideration. I am, however, unable to accept Mr Blake's submission that a claim in damages lies against the CPS for breach of statutory duty. The statute and the regulations are silent on damages. There are strong indicators against the implied creation of a statutory tort of strict liability in a case such as this: the availability to the plaintiff of other remedies both in the criminal proceedings (bail) and in public law proceedings (habeas corpus and mandamus); the absence of any indication in Section 22 of the Prosecution of Offences Act that the Secretary of State had power to make regulations conferring a private right of action on accused persons; and considerations of the kind relied on by the Court of Appeal in Elguzouli - Daf v Commissioner of Police [1995] QB 335 in concluding that, in the absence of voluntary assumption of responsibility to a particular defendant in criminal proceedings, there is no general duty of care owed by the CPS at common law in the conduct of its prosecution of a defendant and that the CPS is immune from actions for negligence. As the claims for damages are plainly not maintainable in law, the plaintiff's proceedings should be struck out in their entirety.

ORDER: Plaintiff's appeal against Home Office dismissed; Crown Prosecution Service's appeal to strike out plaintiff's claim allowed; plaintiff's claim against CPS struck out; plaintiff to pay defendants' costs, not to be enforced without further order; legal aid taxation. Leave to appeal refused.

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